USCA Case #18-5276ORAL DocumentARGUMENT #1770309 NOT YET SCHEDULEDFiled: 01/25/2019 Page 1 of 45 Appeal No. 18-5276
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Jason Leopold and Reporters Committee for Freedom of the Press,
Appellants,
v.
United States of America,
Appellee.
On Appeal from the United States District Court for the District of Columbia Hon. Beryl Howell No. 1:13-mc-00712
BRIEF OF AMICI CURIAE FORMER UNITED STATES MAGISTRATE JUDGES IN SUPPORT OF PETITIONERS AND REVERSAL
Christopher T. Bavitz Kendra K. Albert Mason A. Kortz Cyberlaw Clinic Harvard Law School 1585 Massachusetts Avenue Cambridge, MA 02138 (617) 384-9125 [email protected]
Counsel for Amici Curiae USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 2 of 45
CERTIFICATE AS TO PARTIES, RULINGS UNDER REVIEW, AND RELATED CASES
Pursuant to D.C. Circuit Rules 26.1 and 28(a)(1), and Fed. R. App. P. 26.1, the undersigned counsel certifies as follows:
A. Parties and Amici
All parties, intervenors, and amici appearing in this Court are listed in the
Brief for Petitioners, Docket No. 21.
B. Rulings Under Review
References to the rulings at issue appear in the Brief for Petitioners, Docket
No. 21.
C. Related Cases
The ruling under review has not been, and is not, the subject of any other petition for review.
Dated: January 25, 2019 /s/ Christopher T. Bavitz
Christopher T. Bavitz Cyberlaw Clinic Harvard Law School 1585 Massachusetts Avenue Cambridge, MA 02138 (617) 384-9125 [email protected]
Counsel for Amici Curiae Former United States Magistrate Judges
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ...... iii
GLOSSARY OF ABBREVIATIONS ...... iv
STATUTES AND REGULATIONS ...... v
STATEMENT OF IDENTITY, INTEREST IN CASE, AND SOURCE OF AUTHORITY TO FILE ...... vi
STATEMENT OF AUTHORSHIP AND FINANCIAL CONTRIBUTIONS ...... ix
INTRODUCTION AND SUMMARY OF THE ARGUMENT ...... 1
ARGUMENT ...... 3 I. Administrative Burden Should Not Determine the Existence of a Common Law Right of Access to Judicial Records...... 3 II. The Relief Scheme Requested by the Petitioners Is Practicable...... 7 A. Real-Time Reporting of Basic Case Information Does Not Create Significant Administrative Burden...... 8 B. Periodic Unsealing of Surveillance Applications and Orders Does Not Create a Significant Administrative Burden...... 11 1. USAOs Did Not Report that Reviewing Sealed Filings Created a Significant Administrative Burden...... 13 2. USAOs Only Objected to Unsealing Closed Criminal Matters in a Small Number of Cases...... 15 3. Courts Are Well-Equipped to Manage Requests to Maintain or Extend Seals...... 17 C. Unsealing Surveillance Applications and Orders Is Unlikely to Reveal Enough Information to Impair Ongoing Investigations...... 17 D. There Are Practical and Administrative Benefits to Unsealing Surveillance Applications and Orders...... 20
CONCLUSION ...... 22
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TABLE OF AUTHORITIES
CASES Kyllo v. United States, 533 U.S. 27 (2001) ...... 19 Nixon v. Warner Commc'ns, Inc., 435 U.S. 589 (1978) ...... 4 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ...... 3 United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) ...... 4 United States v. New York Tel. Co., 434 U.S. 159 (1977) ...... 20
STATUTES AND RULES Az. LRCiv 79.1 ...... 13 Pen Register Act, 18 U.S.C. §§ 3121–3127...... 16
OTHER AUTHORITIES Brian Owsley, To Unseal or Not To Unseal: The Judiciary’s Role in Preventing Transparency in Electronic Surveillance Applications and Orders, 5 Cal. L. Rev. Circuit 259 (2014) ...... 12, 15 C.D. Cal. Gen. Ord. No. 17-02 (2017) ...... 9 Cong. Research Serv., 115th Cong., Law Enforcement Using and Disclosing Technology Vulnerabilities (2017) ...... 20 Mem. Of Understanding: Electronic Filing of Certain Sealed Applications. and Orders (May 31, 2018) ...... 10, 11 Stephen Smith, Gagged, Sealed, & Delivered: Reforming ECPA’s Secret Docket, 6 Harv. L. & Pol’y Rev. 313 (2012) ...... 20, 22 Tim Reagan & George Cort, Fed. Judicial Ctr., Sealed Cases in Federal Courts (2009) ...... 20
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GLOSSARY OF ABBREVIATIONS
CM/ECF Case Management/Electronic Case Files
PR/TT Pen Register and/or Trap and Trace
SCA Stored Communications Act, 18 U.S.C. §§ 2701–2712
USAO United States Attorney’s Office
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STATUTES AND REGULATIONS
Relevant statutes and regulations are reproduced in the Addendum accompanying the Brief of Petitioners and the Relevant Statutes Addendum that accompanies this brief.
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STATEMENT OF IDENTITY, INTEREST IN CASE, AND SOURCE OF AUTHORITY TO FILE
Amici are former federal magistrate judges with experience with and interest in the unsealing of federal surveillance orders and applications. Amici include the following:
Mildred E. Methvin served as a United States Magistrate Judge for the
Western District of Louisiana from 1983 to 2009. She worked as a recall
Magistrate Judge for the District of Maryland in 2011 and the Middle District of
Pennsylvania from 2011 to 2013. She served as a Louisiana state district judge pro tem for six months in 2014. She is a former Assistant U.S. Attorney and is currently an attorney and mediator in Louisiana.
Brian Owsley served as a United States Magistrate Judge for the Southern
District of Texas in Corpus Christi from 2005 to 2013. A graduate of Columbia
Law School, he is a former trial attorney for the United States Department of
Justice and a current assistant professor of law at University of North Texas at
Dallas College of Law.
Viktor Pohorelsky served as a United States Magistrate Judge for the
Eastern District of New York from 1995 to 2015 and for an additional three years in that district on recall. Prior to his appointment as a magistrate judge, he had a fourteen-year career as a litigator both in private practice and as an Assistant
United States Attorney in the Southern District of New York. He is now retired.
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Stephen Wm. Smith served as a United States Magistrate Judge for the
Southern District of Texas in Houston from 2004 to 2018. A graduate of
Vanderbilt University and the University of Virginia Law School, he is currently the Director of Fourth Amendment & Open Courts at Stanford Law School’s
Center for Internet and Society.
David Waxse served as a United States Magistrate Judge for the District of
Kansas from 1999 to 2014 and for an additional four years in that district on recall.
Prior to his appointment as a magistrate judge, he was a partner at Shook, Hardy &
Bacon and is the former Chair of the Kansas Commission on Judicial
Qualifications.
Amici submit this brief to offer their perspective on the administrative process and burdens of sealing and unsealing based on their individual experiences as magistrate judges.1 With more than 90 years of cumulative service on the bench, amici are well-positioned to reflect on the potential administrative effects of implementing the relief the Petitioners request. Amici have each presided over a criminal docket and have firsthand experience with unsealing sealed orders and requests for extensions of sealed orders. Judges Smith and Owsley each have experience with attempting to proactively unseal large numbers of closed, sealed
1 Amici act in their individual capacities. All views expressed here are their own and do not represent the views of current or former employers.
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USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 9 of 45 criminal surveillance applications and orders and thus understand the challenges associated with unsealing these filings, the benefits of doing so, and how the unsealing process can be improved.
Amici thus file this brief in support of Petitioners to clarify how the requested relief will affect the administrative load of the courts, United States
Attorneys’ Offices, and clerks’ offices and to explain why the district court’s concerns regarding administrative burden are overstated.
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STATEMENT OF AUTHORSHIP AND FINANCIAL CONTRIBUTIONS
Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), amici curiae
certify that no party or party’s counsel authored this brief in whole or in part, that
no party or party’s counsel provided any money that was intended to fund the
preparation or submission of this brief, and that no party or person—other than the
amici curiae, or their counsel—contributed money that was intended to fund the
preparation or submission of this brief.
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INTRODUCTION AND SUMMARY OF THE ARGUMENT
Given the high variance of practices across courts, the administrative burden
of a request for judicial records should not determine the existence of a common
law right of access. Rather, a court should consider administrative burden when
determining how and when to provide access to such records. In the instant case,
the burden posed by the Petitioners’ requested relief, especially their requested
prospective relief, is not so great as to require a court to curtail or deny access to
the judicial records in question.
The common law right of access is grounded in the importance of judicial
transparency and accountability to the public, not whether providing the records is
convenient for the government. Considering administrative burden as a factor in
how and when the public may access certain judicial records, rather than a factor
in whether the public has a right of access to those records at all, is more
appropriate because of the practical consequences for the public and the courts.
First, it will make determinations of whether a right to certain types of documents
exists more uniform by preventing bureaucratic differences, such as the size or
workload of a government office, from affecting the determination. Second, it will
incentivize courts, United States Attorneys’ Offices (“USAOs”), and clerks to
improve the manner in which they produce and keep records.
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Many of the dire outcomes predicted by the district court have not come to
pass when amici have unsealed judicial records. To the contrary, Petitioners
present a workable scheme that, with adaptations for the specificities of the
district, can be adopted widely. With more and more courts accepting electronic
applications for surveillance orders, real-time reporting of basic case information
can be done with minimal burden on the courts, USAOs, and clerks’ offices.
Mandatory unsealing of surveillance applications and orders associated with
closed or old investigations can also be implemented without substantial
administrative overhead. In amici’s experience, prosecutors usually do not request
extensions for the overwhelming majority of closed or old cases. Moreover, those
that did request extensions did not indicate that doing so created an unworkable
burden. Finally, unsealing basic case information or the applications and orders
themselves will not endanger future investigations or impair law enforcement’s
ability to conduct surveillance.
There are also practical and administrative benefits to providing the full
prospective relief requested by practitioners. Maintaining sealed documents
imposes additional administrative and financial costs on the courts and clerks’
offices. Decreasing the number of sealed documents will reduce these costs.
Unsealing more surveillance applications and orders will also give appellate courts
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more chances for review, which will give much-needed guidance to both district
courts and magistrate judges.
ARGUMENT
I. Administrative Burden Should Not Determine the Existence of a Common Law Right of Access to Judicial Records.
Because administrative practices vary greatly among courts, clerks’ offices,
and USAOs, the administrative burden imposed by a request for judicial records
should not determine the existence of a common law right of access to those
records. Otherwise, differences in record-keeping practices and administrative
capacity will drive the determination of whether such a right exists, causing the
right to vary significantly from district to district. In reaching its decision below,
the district court ignored the larger history of the common law right of access, the
treatment of that right in this Circuit, and the practical consequences of treating
administrative burden as dispositive of whether that right exists.
The common law right of access to judicial records is grounded in the
importance of judicial transparency and accountability to the public, not the
convenience of the government. Open court proceedings are one of the oldest
American common law traditions, older than even the Constitution itself. See
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 565–69 (1980) (reviewing
the history of open trials, their importation to the United States, and their
development in common and statutory law). From this custom of openness in the
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courtroom came a tradition of openness in and access to judicial records, which the
Supreme Court first directly recognized in 1978: “[C]ourts of this country
recognize a general right to inspect and copy public records and documents,
including judicial records and documents.” Nixon v. Warner Commc'ns, Inc., 435
U.S. 589, 597 (1978). It was this very tradition that moved magistrate judges and
former magistrate judges like amici to unseal surveillance orders and other judicial
records during their time on the courts.
Consistent with the importance of judicial transparency and public
accountability, courts have only limited the right of access to judicial records when
there is an equally important countervailing concern. This Court has limited the
right of access to court records in response to privacy interests, national security
concerns, trade secrets, and potential of threats of prejudice. See United States v.
Hubbard, 650 F.2d 293, 316 (D.C. Cir. 1980) (quoting Nixon, 435 U.S. at 598).
Although many D.C. courts have subsequently applied the Hubbard test, no court
thus far has recognized government inconvenience, or even the inconvenience of
an opposing private party, as a valid basis for holding that no right of access exists
in the first place.
This is not to say that a court can never consider administrative burden in
the context of providing access to judicial records. However, government
convenience and administrative burden are more appropriately accounted for when
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deciding how to provide access to records, rather than when considering whether
or not a right of access exists in the first place. Factoring administrative burden
into the mode of access, as opposed to the right of access, will have important
practical and policy consequences for the common law public right of access.
First, it will make determinations of whether a right of access to records exists
more uniform by preventing bureaucratic differences, such as the size or workload
of a government office, from affecting the public’s rights. Second, it will
incentivize courts, USAOs, and clerks to improve the manner in which they
produce and keep records.
If the existence of the right of access to judicial records depends on the
administrative burden on the courts, clerks’ offices, or USAOs, the right will
change based on how the records are kept by each office. Under the district court’s
interpretation of Hubbard, two requestors making the exact same request to
different courts could have different rights. For example, a right of access might
exist in one court where the records are kept electronically, but not in a second
where records are kept on paper and thus more burdensome to access. Moreover,
this variance would not just be across different districts; it could also mean that the
right of public access could depend on the preferences of the magistrate judge who
receives the matter. Magistrate judges have varying systems for surveillance
application and orders, with some having moved exclusively to e-filing for
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applications and others receiving applications on paper. Telephone Interview with
Judge Stephen Smith, Former Federal Magistrate Judge (Jan. 11, 2019)
[hereinafter Smith Interview]. The administrative burden of later unsealing
applications assigned to judges who prefer paper will be higher. Id. Thus, if courts
consider administrative burden in determining whether there is a common law
right to certain documents, that right could turn on which magistrate judge
happened to be on duty when a group of applications and orders came in.
Furthermore, factoring administrative burden into the existence of a right of
access could also result in the common law right of access to certain documents
fluctuating based on arbitrary factors such as the size of the USAO or how busy
the USAO is at the time of the request. In the instant case, the district court
estimated that retrospectively extracting information from pen register and trap
and trace (“PR/TT”) matters could take 788 hours. See JA908. However, the
district court does not provide any information about the USAO’s staff size or
workload. Without this context, it is impossible to know whether 788 hours is a
trivial amount of time, equivalent to other everyday administrative tasks the office
must complete, or the amount of time that would be spent on a larger project.
Telephone Interview with Judge Mildred Methvin, Former Federal Magistrate
Judge (Jan. 10, 2019) [hereinafter Methvin Interview]. Following the district
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court’s logic, a right of access to judicial records might exist in some districts and
not others based on the capacity of the USAO at the time the request is filed.
Finally, if administrative burden is dispositive of whether the public has a
right of access, agencies can effectively insulate their records from common law
access by keeping poor documentation or refusing to move to electronic systems.
The level of administrative burden that courts, clerks, and USAOs face to produce
court records is, at least to some extent, under their control. A rule that makes the
common law right depend upon low administrative burdens could disincentivize
offices from improving their record systems. Instead, this Court should adopt an
interpretation that incentivizes offices to improve the efficiency, uniformity, and
transparency with which they keep records. Requiring offices to comply with these
requests, while giving them additional time or flexibility in fulfilling the requests
as needed, will encourage offices to improve record-keeping, thereby reducing the
burden of such requests in the future.
II. The Relief Scheme Requested by the Petitioners Is Practicable.
The court below denied the Petitioners’ request for retrospective relief and
limited their request for prospective relief. See JA924–25. In doing so, it
overestimated the burden that providing such relief would place on the courts,
clerks, and USAOs. In particular, the limitations the court placed on prospective
relief are unduly strict. Based on amici’s collective experience, basic case
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information can be reported in real-time without significant administrative
overhead. Likewise, applications related to closed cases can be periodically
unsealed without significant burden and without posing a risk to ongoing
investigations. In fact, there are practical and administrative benefits to such
unsealing.
A. Real-Time Reporting of Basic Case Information Does Not Create Significant Administrative Burden.
Petitioner’s first request for additional prospective relief is the “real-time
unsealing and public posting on PACER, upon initial filing of sealed PR/TT,
§ 2703(d), and [Stored Communications Act (“SCA”)] warrant materials” of each
matter’s basic case information. See Pet’rs’ Br. 48–49. Basic case information
includes the case number, case name, date of application, and magistrate judge
assigned to the case. See id. Basic case information itself serves two important
purposes. First, without the docket number, interested parties are unable to request
that closed or old matters be unsealed. Smith Interview. Second, the basic case
information provides interested parties with data regarding the number of each
type of surveillance order request. Id. The district court only briefly addressed the
merits of this request, on the ground that Petitioners did not ask for real time
information at the outset of the case. JA950–53. To the extent that this Court
considers the issue, amici propose that real-time reporting of basic case
information can be conducted with minimal administrative burden.
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Although the process of sealing and unsealing surveillance matters varies
greatly from court to court and even judge to judge, amici observe that national
trends are making it less, rather than more burdensome to unseal documents. In
line with the general trend toward electronic filing, many courts are moving to
electronic filing of sealed surveillance orders. The Central District of California is
currently piloting a program for filing PR/TT and SCA orders on the Case
Management/Electronic Case Files (“CM/ECF”) system, see C.D. Cal. Gen. Ord.
No. 17-02 (2017), and several courts in the Southern District of Texas have
already started putting surveillance orders into CM/ECF. Smith Interview. Basic
case information on the docket sheet can then be made available to the public
through PACER without manual work from the clerk’s office and with nominal
overhead. Telephone Interview with Judge Brian Owsley, Former Federal
Magistrate Judge (Jan. 10, 2019) [hereinafter Owsley Interview]; Smith Interview.
Some judges have gone further and now accept sealed applications
electronically. For example, judges in Houston and Brooklyn have begun
exclusively accepting sealed applications for surveillance warrants over email.
Smith Interview; Telephone Interview with Judge Viktor Pohorelsky, Former
Federal Magistrate Judge (Jan. 10, 2019) [hereinafter Pohorelsky Interview]. This
trend has proven popular with prosecutors and seems likely to continue. Smith
Interview. When the government submits a sealed application electronically, basic
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case information for sealed applications could be entered in CM/ECF or another
public-facing system with relative ease, and the cost of making basic case
information available in real-time would be minimal.2 Id.; Owsley Interview.
At least one district has already implemented a real-time reporting system
on paper. The Eastern District of Virginia maintains a dedicated docket for sealed
surveillance applications and orders that is available to the public from the
E.D. Va. Clerk’s Office. See JA864. This docket keeps a “running list” of PR/TT
and SCA applications that includes a standardized set of case information: the case
number, judge, and status of whether the case is sealed or unsealed. Id. As the
district court noted, there do not appear to have been any negative consequences of
maintaining this public system. Id.
In this case, the Clerk’s Office and USAO have signed a Memorandum of
Understanding (“MOU”), which takes advantage of the aforementioned
administrative efficiencies gained from e-filing by granting blanket permission for
prosecutors to file sealed applications and orders electronically. Mem. Of
Understanding: Electronic Filing of Certain Sealed Applications. and Orders (May
31, 2018). Further, the MOU standardizes the case captions that prosecutors and
2 Even for magistrate judges maintaining a paper docket, paper applications and orders can be scanned into the case management system, at which point they may be handled similarly to applications and orders originally filed electronically. Smith Interview.
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courts use when filing sealed surveillance applications and orders. Id. Although
the format may differ based on the type of application, the new standardized
captions do not include any sensitive, personal, or identifiable information, such as
the names or phone numbers of the targets. As a result, the information from the
case captions can be entered into CM/ECF without the need for any manual review
or redactions. This further reduces the administrative burden of making basic case
information available in real-time. Thus, to the extent this Court considers
prospective access to basic case information, the administrative burden on the
clerks’ offices or USAOs should not stand in the way of real-time reporting.
B. Periodic Unsealing of Surveillance Applications and Orders Does Not Create a Significant Administrative Burden.
Petitioners’ second request for prospective relief is for mandatory unsealing
of closed or old criminal surveillance matters. See Pet’rs’ Br. 61–62. Specifically,
Petitioners sought to compel the government agency requesting the sealed order to
“promptly move to unseal or partially unseal upon the close of the related criminal
investigation.” JA921–22 (internal quotations omitted). For matters that remain
sealed 180 days after filing, Petitioners sought to have the court issue show cause
orders to the requesting agency. See id. The district court again expressed concerns
regarding the administrative burden that mandatory unsealing would place on the
courts, USAOs, and clerks’ offices. See id. Although experiences and practices
obviously differ among courts, the district court’s concerns have not been borne
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out by amici’s experiences in unsealing surveillance applications and orders of
closed criminal matters.
Amici and their fellow magistrate judges have observed and used a variety
of approaches to unsealing surveillance orders and applications. Former United
States Magistrate Judge Smith sent notices to his USAO once a year of his
intention to unseal surveillance applications and orders associated with closed, old,
or inactive criminal investigations. Smith Interview. Judge Smith then gave the
USAO both the opportunity to review any of the sealed files (if necessary), and the
option of requesting for extension (with a proper justification). Id. When
attempting to unseal a large number of old criminal surveillance applications and
orders, former United States Magistrate Judge Brian Owsley sent notices to his
USAO of his intent to unseal in waves. See Brian Owsley, To Unseal or Not To
Unseal: The Judiciary’s Role in Preventing Transparency in Electronic
Surveillance Applications and Orders, 5 Cal. L. Rev. Circuit 259, 260–61 (2014).
Judge Owsley started with an initial wave comprising orders and applications that
were more than five years old. Id. Although Judge Owsley’s orders were not
ultimately unsealed, the USAO did not file any requests for extensions of sealings
in this initial wave. See id. at 260–62; Owsley Interview. Some judges have also
adopted a policy limiting their sealing orders to a specified period of time, after
which the entire matter is to be unsealed absent an application for an extension of
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the sealing order. Pohorelsky Interview. The District of Arizona already uses such
a system. See Az. LRCiv 79.1. There, all sealed surveillance orders are
automatically unsealed after 180 days. See id. The clerk of court notifies the
Arizona USAO of the unsealing 60 days before the documents are to be unsealed,
giving the USAO the chance to request an extension if appropriate. See id. This
approach has the benefit of being easily administrable for the courts because it
does not require tracking whether cases have closed.
Amici have not observed the administrative burden of implementing
mandatory unsealing of surveillance applications and orders related to closed
criminal investigations that troubled the district court. Nor, in amici’s experience,
have USAOs struggled to review the applications and orders that magistrate judges
proposed to unseal. In fact, USAOs opposed unsealing in only a few cases, and
where the USAO did respond with a request for an extension, courts were
equipped to decide on whether to keep the matter sealed.
1. USAOs Did Not Report that Reviewing Sealed Filings Created a Significant Administrative Burden.
The district court expressed concern that mandatory unsealing would require
the USAO to review sealed applications and orders to determine whether to
request an extension, placing an unworkable burden on the USAO. See JA922.
Amici, who have served as magistrate judges in various federal districts, have not
found this to be the case. None of the amici received complaints from USAOs
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regarding the obligation to review applications and orders to determine whether
they could be unsealed and, if so, with what redactions. Methvin Interview; Owsley
Interview; Pohorelsky Interview; Smith Interview. Indeed, some judges felt that the
USAO understood that indefinite sealing should not be the default position.
Methvin Interview.
One reason that reviewing applications and orders is less burdensome than it
might first appear is that the applications and orders in general contain more
boilerplate information than secret or sensitive information. Owsley Interview;
Pohorelsky Interview. In many districts, PR/TT applications and orders do not
contain any background factual information, and the only information that would
need to be reviewed and redacted is the name and telephone number of the target.
Pohorelsky Interview. Although § 2703(d) orders and SCA warrant applications
and orders contain factual information and may therefore need to be reviewed
more substantively by the USAO, they are also primarily made up of boilerplate
language. Often, sensitive information tends to appear in the same sections of each
document. Id.; Smith Interview. The fact that applications and orders contain
standardized language limits the need for a detailed review of all the parts of the
document. Instead, prosecutors can quickly check through each document to find
the sections that require redaction, if any.
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Additionally, to minimize downstream redaction costs when prosecutors are
less familiar with cases, courts could require that unsealed, redacted versions of
the application and order could be filed contemporaneously with the sealed copies.
This is already done routinely in civil matters, and it would reduce the need to
retrospectively review the applications and orders for sensitive and personal
information later. Pohorelsky Interview.
2. USAOs Only Objected to Unsealing Closed Criminal Matters in a Small Number of Cases.
The district court also worried that mandatory unsealing would consume an
“unworkable” amount of USAO resources, as the USAO would have to respond to
each show cause order. JA922. In amici’s experience, prosecutors rarely sought
extensions of seals for applications and orders associated with closed, old, or
inactive criminal investigations.
In most cases, the USAOs did not respond to notices to unseal applications
and orders at all. Former United States Magistrate Judge Brian Owsley found that
when he gave notice that he planned to unseal a large class of surveillance
applications and orders older than five years, the USAO, after reviewing the files,
did not oppose the unsealing of a single application or order. See Owsley, To
Unseal or Not To Unseal, supra at 260–61. Former United States Magistrate Judge
Stephen Smith noted that the USAO responded to notices of intention to unseal
applications and orders in less than ten percent of cases, with many of the
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responses being requests for more information about the case itself. Smith
Interview. In some cases, prosecutors requested extensions or argued that
redactions were insufficient, but in Judge Smith’s experience, responses of any
kind were the exception. Id.
Prosecutors likely declined to respond because cases in which the order has
long lapsed, and which have been sealed for six months or more, are unlikely to be
related to ongoing investigations. For example, in the case of PR/TT orders, the
lifespan of the order itself is only 60 days unless there is an extension. Pen
Register Act, 18 U.S.C. § 3123(c)(2). For long-term, active investigations,
prosecutors proactively file for extensions, and such extensions are routine.
Methvin Interview. Where a prosecutor has allowed a surveillance order to lapse,
this may suggest that the investigation is no longer active, and thus the prosecutor
does not have an incentive to request an extension to the sealing of that order.
Thus amici, who have been through the process of unsealing closed and old
matters, have not observed any signs that unsealing closed or old surveillance
orders placed a significant burden on their respective USAOs. Most of the time,
notice of unsealing did not garner a response at all. In the few cases it did, no
USAO complained about the administrative burden of moving for an extension
where necessary.
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3. Courts Are Well-Equipped to Manage Requests to Maintain or Extend Seals.
Although the district court expressed concerns that courts and USAOs
would have to spend significant resources on show cause orders, in amici’s
experience, both the courts and USAOs were able to manage these requests. In the
few cases where a USAO requested an extension to a seal, former Magistrate
Judge Stephen Smith required a motion showing a reasonable basis for the
extension. Smith Interview. If the investigation were ongoing, the showing
required was minimal; for closed investigations, on the other hand, it was
somewhat higher. In either case, if the USAO made such a showing, the extension
was granted for 90 days. Id. Some magistrate judges require additional showings,
with increasing burdens to meet, from prosecutors making repeated requests for
extensions on a single surveillance order and application. Id. The requests for
extension contained only the facts necessary to justify it, and judges did not feel
that reviewing these requests constituted a substantial administrative burden. Id.
C. Unsealing Surveillance Applications and Orders Is Unlikely to Reveal Enough Information to Impair Ongoing Investigations.
The district court raised concerns that unsealing surveillance applications
and orders would reveal the factual or legal bases on which law enforcement rely
to obtain surveillance orders, as well as information about the technical
capabilities of electronic surveillance tools. See JA922–23. The court worried that,
17 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 28 of 45
were these applications and orders unsealed as a matter of course, targets of
investigations could use the information therein to frustrate the investigation. Id.
However, in the experience of amici, redacted surveillance orders and applications
do not contain enough information to jeopardize ongoing investigations for several
reasons.
First, the existence of these orders will not jeopardize ongoing
investigations because the name, number, and account information of the target
can be redacted. Targets of the investigation or of related investigations will not be
able to tell simply from the existence of an order that they were under surveillance.
Indeed, redaction should be the first approach to concerns, as opposed to continued
sealing.
Second, the factual bases supporting the applications may also be redacted
even when the orders are unsealed if they could jeopardize other ongoing or future
investigations. As discussed in Section II.B.1, much of the material in sealed
applications and orders is boilerplate. Sensitive information and information
describing the basis for the order or warrant is often confined to a few paragraphs
(or less for PR/TT applications and orders), and is often found in the same place in
each application and order. In one magistrate judge’s experience, a 15- to 20-page
application would usually contain just a few paragraphs justifying the need for the
order or warrant. This suggests that these applications and orders do not contain
18 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 29 of 45
lengthy explanations of the basis on which the order or warrant is sought. Smith
Interview. Any factual information that could jeopardize other investigations could
therefore quickly be located and redacted.
Third, even if unsealing of these orders reveals “novel” legal theories for
obtaining surveillance orders, such revelations are unlikely to jeopardize ongoing
investigations. While there have been some prosecutors attempting to use
innovative legal arguments in applications (for example, using trap-and-trace
orders to request permission to use a cell-site simulator), Smith Interview,
revealing such theories is unlikely to provide targets with any additional
meaningful information beyond the existence of the order itself. Knowing that a
trap-and-trace order was used to approve use of a cell-site simulator based on a
novel legal argument does not provide the public with more information than the
existence of an SCA warrant approving a cell-site simulator.
Finally, sealed surveillance applications and orders themselves do not
generally contain much information related to how the device or data collection
technique works, nor do they reveal information that is not available in the public
domain. Information related to how these devices and data collection techniques
operate is commonly known and widely available online—even in judicial
decisions themselves. See, e.g., Kyllo v. United States, 533 U.S. 27, 29–30 (2001)
(explaining how a thermal imager works); United States v. New York Tel. Co., 434
19 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 30 of 45
U.S. 159, 162–63 (1977) (explaining how pen registers work and how the FBI uses
leased lines to install pen registers in an “unobtrusive way” and in “inconspicuous
locations”). Targets of investigations are aware of how common surveillance
techniques such as pen registers operate. Owsley Interview; Smith Interview. Even
for more novel techniques, information is publicly available. See Cong. Research
Serv., 115th Cong., Law Enforcement Using and Disclosing Technology
Vulnerabilities (2017) (describing how law enforcement surveillance techniques
were applied in specific investigations).
D. There Are Practical and Administrative Benefits to Unsealing Surveillance Applications and Orders.
Reducing the amount of sealed information that flows through the courts has
both practical and administrative benefits for the courts and clerks’ offices. First, a
reduction in the number of sealed matters would lower the financial cost
associated with maintaining sealed files. Maintaining sealed matters, especially for
magistrate judges using paper dockets, is actually quite burdensome. See Smith
Interview; see also Stephen Smith, Gagged, Sealed, & Delivered: Reforming
ECPA’s Secret Docket, 6 Harv. L. & Pol’y Rev. 313, 334 (2012) (“[S]ecrecy also
has a financial cost, because sealed records are more burdensome for clerk’s
offices to maintain than open records.”); Tim Reagan & George Cort, Fed. Judicial
Ctr., Sealed Cases in Federal Courts (2009), available at
https://www.fjc.gov/sites/default/files/2012/SealCaFC.pdf. To seal a surveillance
20 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 31 of 45
application and order, the files must be removed from the general system, placed
in a manila folder, and physically stored with the judge. Smith Interview. Later
requests to access these or associated files must then be handled using the stored
hard copies, rather than the general system maintained by clerk’s office. For
matters that no longer need to be sealed, such as closed criminal matters,
magistrate judges and clerks can save on the administrative costs of maintaining
these matters separately by proactively unsealing the applications and orders.
Second, when matters are unsealed, or at least the associated docket
numbers and type of order are openly available, it is easier for clerks’ offices to
manage case flow. Up-to-date case management information, including the ability
to track the number and type of cases or identify long-term trends in case filings,
allows the clerk’s office to more efficiently manage the case load for individual
judges on the criminal docket. It also allows the clerk’s office to predict the
document storage needs of the court and plan its own personnel staffing. The more
sealed matters that remain, the greater the number of matters that must be managed
outside the normal case management process of the clerk’s office, and the less
helpful this case management information is for the day-to-day functions of the
clerk’s office.
Finally, unsealing surveillance applications and orders would result in more
appellate review, thus giving magistrate judges additional guidance and reducing
21 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 32 of 45
their decision-making load. Currently, due to the secret nature of these orders,
orders once sealed usually remain sealed indefinitely. Smith Interview; Owsley
Interview. When these orders remain secret, the targets are prevented from
challenging the order on appeal, which in turns prevents appeals courts from
having the opportunity to review and evaluate orders and their associated statutes.
This leaves district court and magistrate judges will little to no appellate guidance,
making it more difficult and time-consuming for them to make decisions. See
Smith, Gagged, Sealed, & Delivered, supra, at 326–31.
Encouraging courts to unseal as much about closed surveillance matters as
possible will thus reduce the administrative burden and costs that maintaining
these sealed files places on the courts and clerks’ office. Reducing the number of
matters that must be accounted for outside the normal case management system
will also provide clerks’ offices with better visibility into the types of matters filed,
and therefore better visibility into the needs of the courts. Finally, encouraging
unsealing will reduce the secrecy surrounding surveillance matters and result in
more appellate review, providing much-needed guidance to district and magistrate
judges.
CONCLUSION
The district court overestimated the administrative burden of the prospective
relief requested by the Petitioners. In amici’s experience, the potential
22 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 33 of 45
administrative burdens of unsealing surveillance applications and orders, and the
associated basic case information, are mitigated by three factors: the move to e-
filing and CM/ECF, the lack of prosecutorial resistance to unsealing old
applications and orders, and the court’s administrative savings from maintaining
fewer sealed documents. For these reasons, amici respectfully request that the
Court reverse the district court decision as to the limitations on prospective relief
and grant the Petitioners real-time reporting of basic case information as well as
mandatory unsealing of orders and applications related to closed investigations or
investigations older than 180 days.
Respectfully submitted,
Dated: January 25, 2019 /s/ Christopher T. Bavitz
Christopher T. Bavitz Cyberlaw Clinic3 Harvard Law School 1585 Massachusetts Avenue Cambridge, MA 02138 (617) 384-9125 [email protected]
Counsel for Amici Curiae Former United States Magistrate Judges
3 Amici curiae thank Cyberlaw Clinic students Akua Abu and Alexandra Noonan for their valuable contributions to this brief.
23 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 34 of 45
CERTIFICATE OF COMPLIANCE
This document complies with the type-volume limitation of the Federal
Rules of Appellate Procedure and the Circuit Rules. The document contains 5745
words, excluding the parts of the document exempted by Federal Rule of Appellate
Procedure 32(f).
This document complies with the typeface and type style requirements of
the Federal Rules. The document has been prepared in a proportionally spaced
typeface using Microsoft Word, in the font Times New Roman.
Dated: January 25, 2019 /s/ Christopher T. Bavitz
Christopher T. Bavitz Cyberlaw Clinic Harvard Law School 1585 Massachusetts Avenue Cambridge, MA 02138 (617) 384-9125 [email protected]
Counsel for Amici Curiae Former United States Magistrate Judges
USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 35 of 45
CERTIFICATE OF SERVICE
I hereby certify that on January 25, 2019, I caused the foregoing Brief of
Amici Curiae Former United States Magistrate Judges in Support of Petitioners to
be electronically filed with the Clerk of the Court using CM/ECF, which will
automatically send email notification of such filing to all counsel of record.
Dated: January 25, 2019 /s/ Christopher T. Bavitz
Christopher T. Bavitz Cyberlaw Clinic Harvard Law School 1585 Massachusetts Avenue Cambridge, MA 02138 (617) 384-9125 [email protected]
Counsel for Amici Curiae Former United States Magistrate Judges
USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 36 of 45
ADDENDUM
USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 37 of 45
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 IN THE MATTER OF ) GENERAL ORDER NO. 17-02 ) 12 CRIMINAL DUTY MATTERS ) ELECTRONIC FILING PILOT PROJECT ) 13 ) 14 The Local Rules for the Central District of California provide that, subject to 15 certain exceptions, all documents filed in civil and criminal cases must be filed 16 electronically using the Court’s Case Management/Electronic Case Filing (“CM/ECF”) 17 System. L.R. 5-4.1, L.Cr.R. 49-1.1. One of the exceptions is for documents filed in 18 “criminal duty matters,” which must be presented to the Clerk for filing in paper 19 format. L.Cr.R. 49-1.2(b)(4). Having determined that it would benefit the Court, the 20 bar, and the public to allow electronic filing of documents in criminal duty matters, the 21 Court establishes by this General Order a pilot project to test this practice, which will 22 be known as the Criminal Duty Matters Electronic Filing Pilot Project (“Pilot Project”). 23 The Pilot Project will start on March 20, 2017. Beginning on that date, 24 documents in certain types of criminal duty matters, identified below in Section I, must 25 be filed electronically notwithstanding Local Rule 49-1.2(b)(4). It is anticipated that 26 electronic filing will be expanded to additional criminal duty matters in the future by 27 either General Order or Local Rule of this Court. 28
A-3 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 40 of 45 General Order No. 17-02 1 I. CRIMINAL DUTY MATTERS DESIGNATED FOR PILOT PROJECT 2 This General Order creates an exception to Local Criminal Rule 49-1.2(b)(4) for 3 documents filed by the United States Attorney’s Office (“USAO”) in criminal duty 4 matters initiated by the filing of an application for one or more of the following: (1) a 5 search warrant, (2) a pen register, (3) a trap and trace device, or (4) an order under 18 6 U.S.C. § 2703(d). Documents filed in all other criminal duty matters remain subject to 7 Local Criminal Rule 49-1.2(b)(4) and must be presented to the Clerk for filing in paper 8 format. 9 II. PROCEDURES FOR FILING DOCUMENTS ELECTRONICALLY 10 UNDER THE PILOT PROJECT 11 The provisions that follow govern electronic filing under the Pilot Project. Filers 12 should also refer to the “Criminal Duty Matters Electronic Filing Pilot Project User 13 Manual,” available on the Court’s website, for more details and step-by-step 14 instructions. 15 A. Participating Filers 16 The CM/ECF events needed to file documents electronically under this General 17 Order will not be accessible to most users of CM/ECF. The USAO must give advance 18 notice to the Clerk’s Office of the names of CM/ECF users who may file such 19 documents. They will be identified as “Participating Filers,” and their CM/ECF 20 accounts will be programmed to access Pilot Project events. CM/ECF users not 21 designated as Participating Filers will not be able to file documents under the Pilot 22 Project. 23 B. Commencement of Criminal Duty Matter and Assignment of Case 24 Number 25 To obtain a search warrant, pen register, trap and trace device, or order under 18 26 U.S.C. § 2703(d) under the Pilot Project, a Participating Filer must first open a new 27 criminal duty matter in the Court’s CM/ECF System. This creates the docket in 28 CM/ECF under which the relevant documents will be filed. A criminal duty matter
2 A-4 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 41 of 45 General Order No. 17-02 1 opened electronically in the CM/ECF System by a Participating Filer will automatically 2 be issued an “MJ” case number. All criminal duty matters opened under the Pilot 3 Project will initially be given a generic name, such as “U.S. v. Search Warrant.” After 4 opening the docket and obtaining a case number, the filer must add that case number to 5 the caption of each document filed in the case. 6 C. Filing Application 7 1. For Search Warrant 8 To obtain a search warrant, the filer must electronically file an “Application for 9 Search Warrant” as docket number one (Dkt. No. 1) in the case, and lodge the Proposed 10 Search Warrant as an attachment to the Application. If the Application requests a 11 delayed-notice search warrant, a completed AO-95 Delayed-Notice Search Warrant 12 Report form must be attached to the Application. The Application, all attachments to 13 the Application, and the text of the docket entry will automatically be sealed upon 14 filing, and will remain sealed until after the Warrant, if approved, issued, and executed, 1 15 is returned. A separate Application for Leave to File Under Seal is not necessary 16 unless the filer believes that documents filed in the case should remain under seal after 17 the executed warrant has been returned; in that event, an Application for Leave to File 18 Under Seal should be electronically filed as docket number two (Dkt. No. 2) in the 19 case, with a Proposed Order attached. 20 2. For Pen Register, Trap and Trace Device, or Order Under 18 21 U.S.C. § 2703(d) 22 To apply for an order authorizing a pen register or trap and trace device, or for an 23 order under 18 U.S.C. § 2703(d), the filer must electronically file an “Application for 24 [Pen Register] [Trap and Trace Device] [Order Under 18 U.S.C. § 2703(d)]” as docket 25 26 1For a brief time immediately after filing the Application and attachments, the filer may not 27 be able to view the sealed documents. Shortly after the criminal duty matter is opened, Clerk’s Office staff will edit the default settings for the case in CM/ECF to seal the entire case and to allow 28 the filer to view the case and all sealed documents filed therein.
3 A-5 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 42 of 45 General Order No. 17-02 1 number one (Dkt. No. 1) in the case, and lodge a Proposed Order as an attachment to 2 the Application. The Application, all attachments to the Application, and the text of 3 the docket entry will automatically be sealed upon filing, and will remain sealed until 2 4 an order unsealing them is entered. A separate Application for Leave to File Under 5 Seal is not necessary. 6 D. Notice to Duty Judge 7 After filing an Application electronically under Section II.C., the filer must 8 immediately send an email to the chambers email address of the appropriate duty 9 magistrate judge, notifying the judge that the Application has been filed. Since 10 individual judges are not assigned to criminal duty matters, the duty judge will not 11 otherwise receive notice that an Application has been filed. If the filer fails to email 12 notice to the duty judge promptly after filing the Application, the Application may not 13 be considered. 14 The notice email must include the following information: notice that an 15 Application has been filed, the case number, contact information for the responsible 16 agent and the Assistant United States Attorney (“AUSA”) who filed the Application, a 17 Word or Word Perfect copy of the Proposed Warrant or Order, and, if applicable, a 18 Word or Word Perfect copy of the Proposed Order to Seal. If multiple related 19 Applications are filed concurrently (such as when a single Affidavit covers multiple 20 search locations), the notice email should include a list of all such Applications and 21 their associated case numbers and attach any required Word or Word Perfect copies of 22 Proposed Warrants and Proposed Orders to Seal. 23 E. Identifying Appropriate Duty Judge 24 For new Applications e-filed between 8:00 a.m. and 4:30 p.m. on regular Court 25 26 2For a brief time immediately after filing the Application and attachments, the filer may not 27 be able to view the sealed documents. Shortly after the criminal duty matter is opened, Clerk’s Office staff will edit the default settings for the case in CM/ECF to seal the entire case and to allow 28 the filer to view the case and all sealed documents filed therein.
4 A-6 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 43 of 45 General Order No. 17-02 1 days, the notice email must be sent to the magistrate judge on criminal document duty 2 that day. For new Applications e-filed after 4:30 p.m. that do not require emergency 3 attention, the notice email must be sent to the magistrate judge on criminal document 4 duty the next regular Court day. 5 For new Applications e-filed between 4:31 p.m. and 8:00 a.m. the next regular 6 Court day that require emergency attention, a notice email is not sufficient. In addition 7 to the notice email, which should be directed to the magistrate judge on after-hours 8 duty at the time the Application is e-filed, the filer must also follow the current 9 procedures for all after-hours filings and contact the United States Marshals Service. 10 Note that the magistrate judge on after-hours duty as of 4:31 p.m. receives applications 11 that require emergency attention until 8:00 a.m. the following day. 12 For Applications that have already been denied by a previous duty judge and that 13 are being re-filed with amendments or corrections, the notice email must be sent to the 14 judge who denied the original Application even if a different judge is on duty the day 15 the amended Application is filed, unless the amended Application requires emergency 3 16 attention outside regular court hours. For previously denied Applications re-filed 17 between 4:31 p.m. and 8:00 a.m. the next regular Court day that require emergency 18 attention, the notice email should be sent to the magistrate judge on after-hours duty at 19 the time the Application is re-filed, regardless of which judge denied the original 20 Application. 21 F. Default Procedures to Obtain Ruling on Application 22 1. For Search Warrant 23 Unless otherwise directed by the duty judge to whom the notice email is sent, the 24 agent seeking to obtain a search warrant during regular court hours must, after the 25 Application has been e-filed and the notice email sent, bring the original and one copy 26 27 3If the original judge is unavailable, Clerk’s Office staff will forward the notice to the duty 28 judge.
5 A-7 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 44 of 45 General Order No. 17-02 1 of the Application and any other e-filed documents directly to the appropriate duty 2 magistrate judge in person, in accordance with current practice. 3 2. For Pen Register, Trap and Trace Device, or Order Under 18 4 U.S.C. § 2703(d) 5 No personal appearance is necessary in connection with an Application for a pen 6 register, trap and trace device, or order under 18 U.S.C. § 2703(d). The duty judge will 7 rule on the Application based on the electronically filed documents. 8 G. Ruling on Application 9 1. If Application Granted 10 a. For Search Warrant 11 If the Application is granted, the Proposed Warrant must be finalized, signed, 12 and filed. Unless otherwise directed by the reviewing judge, the original and the one 13 paper copy provided by the agent will both be signed and conformed; the original will 14 be returned to the agent and the copy retained by the Court for scanning and docketing. 15 b. For Pen Register, Trap and Trace Device, or Order Under 16 18 U.S.C. § 2703(d) 17 If the Application is granted, an order will be filed, and the filer will receive a 18 Notice of Electronic Filing from the Court’s CM/ECF System. 19 2. If Application Denied 20 If the Application is denied, with or without prejudice, a docket entry to that 21 effect will be entered, and the filer will be notified of the result electronically by 22 receiving a Notice of Electronic Filing from the Court’s CM/ECF System. Denied 23 Applications will remain under seal. Once the Application has been denied, any 24 subsequent Application must be e-filed as a new criminal duty matter, under a new case 25 number, even if the Application is amended in response to the reviewing duty judge’s 26 comments. However, when the amended Application is e-filed, the notice email 27 required by Section II.D., above, must be sent to the judge who denied the original 28 Application even if a different judge is on duty the day the amended Application is
A-86 USCA Case #18-5276 Document #1770309 Filed: 01/25/2019 Page 45 of 45 General Order No. 17-02 1 filed, unless the amended Application requires emergency attention outside regular 4 2 court hours. For previously denied Applications re-filed between 4:31 p.m. and 8:00 3 a.m. the next regular Court day that require emergency attention, the notice email 4 should be sent to the magistrate judge on after-hours duty at the time the Application is 5 re-filed, regardless of which judge denied the original Application. 6 H. Search Warrant Returns 7 After the Warrant has been executed, the AUSA must e-file the return under the 8 same case number. After the return has been filed, the criminal duty matter will be 9 closed and, unless an Order to Seal the case has been entered, unsealed. 10 I. Extension Requests for Delayed-Notice Search Warrants 11 Requests for extensions of delayed-notice search warrants must be e-filed under 12 the same case number as the Application that was granted. Each such request must be 13 accompanied by a completed AO-95 Delayed-Notice Search Warrant Report form. 14 After filing a request for extension, the filer must immediately send an email to the 15 chambers email address of the magistrate judge on duty at the time of filing the 16 extension request, even if a different judge granted the original Application. If the filer 17 fails to email notice to the duty judge promptly after filing the request for extension, 18 the request may not be considered. 19 J. Application of Other Rules 20 Except as noted with respect to Local Criminal Rule 49-1.2(b)(4), all federal and 21 local rules continue to apply to documents filed under this General Order. 22 IT IS SO ORDERED. 23 ______24 CHIEF UNITED STATES DISTRICT JUDGE 25 Date of Approval by the Court: February 16, 2017 26 Date of Filing by the Clerk: February 17, 2017 27
28 4If the original judge is unavailable, Clerk’s Office staff will forward the notice to the duty judge.
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